Monday, January 25, 2010

Emails, Interception and Private Actors

This post is about a case that raised issues I’ve discussed in prior posts that arise in a rather unique context. But before we get to the issues, I need to note how the case arose.

The case is People v. Theobald, 2009 WL 5062033 (California Court of Appeals 2009). Herehere is how the California Court of Appeals described the facts that led to the opinion we’ll be analyzing in a moment:

Their first sexual intercourse occurred in April 2007 at Huntington Beach at the lifeguard tower. Two weeks later, they had intercourse in a car at a Norco park. A third time they had intercourse and oral sex at the park. They also had intercourse at [Theobald’s] Upland apartment. A fifth incident of intercourse occurred in a car in a Home Depot parking lot. Jane Doe recalled two other instances of oral sex in a car. They engaged consensually in at least five instances of intercourse and three of oral sex. . . .

People v. Theobald, supra.Prior to trial, Theobald moved to suppress evidence “on the grounds that an email from Jane Doe to him was obtained without his consent by his friend, Brandon Kaan, at the behest of” Theobald’s wife. People v. Theobald, supra.Theobald claimed that if “Kaan had not obtained the email, Jane Doe would never have been identified and questioned by the police.” People v. Theobald, supra.Later in the opinion, the Court of Appeals explains that the

email was sent from Jane Doe to [Theobald]. It expresses Jane Doe's concern that [his] wife would discover her identity, which would be `horrible actually.’[Theobald’s] friend, Kaan, who knew [Theobald’s] password, was able to access his email account and then, using Jane Doe's email address, identify her as a student at the high school where both men taught. Kaan then reported the information to the police.

People v. Theobald, supra.

Theobald based his motion to suppress primarily on two arguments:One was that “the email and any information derived from it constituted an illegal `interception’ of the electronic communication” between him and Jane Doe in violation of 18 U.S. Code § 2511; the other argument was that the email was obtained in violation of the 4th Amendment. People v. Theobald, supra.

The trial court denied Theobald’s motion to suppress and he would up pleading “no contest to eight sexual offenses” (presumably the eight noted above). People v. Theobald, supra.He was sentenced to “eight concurrent terms of two years in prison” but the trial court “spared” him “from being required to register as a sex offender”. People v. Theobald, supra.

Theobald apparently reserved his right to appeal the trial court’s denial of his motion to suppress, because that’s the primary issue he raised on appeal.(He also challenged testimony at his preliminary hearing as violating the rules against hearsay, but we’re not concerned with that argument.) People v. Theobald, supra.

As I noted above, Theobald argued on appeal that the way police gained access to the Jane Doe email violated 18 U.S. Code § 2511 and/or the 4th Amendment. People v. Theobald, supra.He lost on both issues.

As I explained in an earlier post, 18 U.S. Code § 2511 makes it illegal to “intercept” the contents of a wire, oral or electronic communication without complying with certain requirements.The Jane Doe email was clearly an “electronic communication” within the scope of § 2511, and Kaan obtained the contents of the email without complying with the statute’s requirements.So Theobald had the beginnings of a credible argument under § 2511.

The problem was that § 2511 makes it illegal to “intercept” the contents of an electronic communication; therefore, to violate§ 2511 Kaan not only had to obtain the contents of an electronic communication without complying with the statute’s requirements, he also had to have “intercepted” those contents.As I explained in my prior post on this issue, courts generally agree that to “intercept” the contents of an electronic communication, the contents must have been obtained contemporaneously with the transmission of the communication.Or as some courts have put it, the contents must have been obtained “in flight,” i.e., while they’re traveling from sender and receiver.In my prior post, I explained why interception is being construed in that fashion.

Theobald, of course, couldn’t show that the contents of the Jane Doe email had been obtained while they were in transmission, which meant he couldn’t show they were “intercepted” in violation of 18 U.S. Code § 2511.The trial court therefore denied his motion to suppress the email, noting that retrieving a stored email doesn’t constitute interception:“Interception means acquiring the data simultaneously with the original transmission.” People v. Theobald, supra.The Court of Appeals naturally agreed with the trial court:“[R]etrieving an demail after it has been received does not constitute `interception’ of an electronic communication.” People v. Theobald, supra.

That left Theobald’s 4th Amendment argument.As I’ve noted in earlier posts, it’s simply not clear if emails left stored in someone’s account are protected by the 4th Amendment.The issue, as I’ve explained in earlier posts, is basically whether you surrender your 4th Amendment expectation of privacy in the contents of emails by leaving them stored with a third party, which can access them.So the prosecution could have argued that Theobald had no 4th Amendment expectation of privacy in the email; and if he had no 4th Amendment right to privacy in the email, then what Kaan did couldn’t have violated the 4th Amendment.

Neither the trial court not the Court of Appeals took that route, though both rejected Theobald’s 4th Amendment argument. They instead relied on a different theory.

As I noted in another post, the 4th Amendment only applies to what’s called “state action.”That is, it only protects us from law enforcement officers when they are acting as law enforcement officers, i.e., are collecting evidence to be used in a criminal case.

As I explained in that post, the 4th Amendment doesn’t protect us from “private actors,” i.e., from people who are not associated with law enforcement but who decide to collect evidence on their own and take it to the police.As I also explained, the only way the 4th Amendment can apply to the actions of a private person is if that private person had become an agent of the state when he/she sought out evidence and took it to the police.

So, as both the trial court and the Court of Appeals held in the Theobald case, Kaan’s collecting the Jane Doe email from Theobald’s email account would implicate the 4th Amendment if Kaan was acting as an agent of the state (i.e., an agent of the police) when he obtained it. People v. Theobald, supra.

As I’ve also explained, to become an agent of the state you have to meet two requirements:One is that you had to have acted to benefit law enforcement; that requirement is of course met here, as it is in every case where someone collected evidence and took it to the police.But, as I tell my students, a private person’s acts are not, in and of themselves, binding on law enforcement.Becoming an agent of the state (or the police) also requires that the police have encouraged you to collect the evidence or done something else to indicate that they sanction your conduct.It’s something like a contract:I may be angry at my neighbor and grab evidence from his garage and take it to the police to get him prosecuted, but that, alone, doesn’t make me an agent of the state; there has to have been an agreement, in effect a contract, between us.The state has to have sicced me on my neighbor or at least acquiesced in what I was going to do, knowing I was going to do it.

We don’t have that in the Theobald case.In denying Theobald’s motion to suppress, the trial court held that the “`”seizure” of e-mails was by a private party and not acting on behalf of law enforcement but rather on behalf of a private party, [Theobald’s] wife.’” People v. Theobald, supra.The Court of Appeals agreed:

[T]he Fourth Amendment [protection] against illegal search and seizure does not afford protection to the subject email because it was obtained by a private party who then shared the information with the police. . . . Even if the private party intended to assist law enforcement, government participation has to be extensive enough to trigger Fourth Amendment scrutiny. . . . In the present case, Kaan acted on his own before contacting the police. No Fourth Amendment protection applied to his conduct as a private citizen.

8 comments:

Great issues here -- no wonder a law professor likes this opinion. I did not say you necessarily agreed with it, though it seems that you do. It does seem sound, based on what you say about the precedents, Professor Brenner.

But this interpretation of "intercepts," while pretty clearly true to the plain language of the statute, really seems to be crying out for legislative attention. Obviously I am in no way condoning the conduct here (though there is plenty of to talk about on at least some of the underlying policy issues of course).

But the question seems to be whether Congress meant only to prohibit contemporaneous interception of emails and chose that language purposely. It would not be surprising if it did so; presumably the immediate danger contemplated was by analogy to eavesdropping on a telephone conversation. The limitations of that analogy are obvious, however; whenever eavesdropping is a crime, recording what you hear (or even merely recording the call as it happens but listening to it later) is always included in the prohibition.

Email security, on the other hand, is seldom about contemporaneous interception, nor is there any reason it would be. It's about what's on the server, what gets forwarded, etc. The violation of the expectation of privacy is every bit as profound when emails are retrieved seconds, minutes or months after they're sent.

Now the expectation of privacy is a dicey concept here. The same organ the defendant utilized for judging whether or not to have an adulterous affair with an underage student also governed his protection of passwords, as you point out. (Not in so many words.) But it's hard to see why this statute, even if it is being interpreted in accordance with its original, pre-Internet-sensibility intent, is not amended to include post-facto retrieval -- even if you want to include, perhaps, a crime / fraud exception for situations such as this one?

As to whether Congress only meant to prohibit the contemporaneous capture of content in transmission, yes, as I noted in an earlier post, that's clearly what they intended . . . 20+ years ago. As I noted in that earlier post, distinguishing between capturing content "in flight" and once it's come to rest and is in storage is a product of the fact that this statute is at least in part based on the Supreme Court's decision in Katz.

In Katz, in 1967, the Court finally held it was a 4th Amendment search to intercept (wiretap) the contents of a phone call. As I noted in that earlier post, the only way you can capture a phone conversation is by intercepting it. (I know, you can capture voicemail without intercepting it, but Katz long predates voicemail, email, etc.). So, the notion of interception was at the heart of the Katz decision, and Katz shaped Title III, the 1968 wiretap statutes and that concept carried over -- erroneously, in my mind -- to the statutes we currently have.

And yes, I absolutely agree that these statutes need to be radically revised.

Obviously it is not going to be cases such as this one that are going to be championed for that legislative change! And who, really, wants to get anywhere near a crime / fraud exception in the self-help / Fourth Amendment department... yikes!

Don: It's not about the number of milliseconds. It's about path integrity.

If I send you an email, computers on the path do not normally retain copies. Modifying one to retain copies would make a contemporaneous interceptions, regardless of when I later accessed the intercepts.

The "intercepts" logic means that intermediaries cannot retain and keep copies. If I'm talking to you on the phone, the phone company can't keep a copy for itself. So it prevents unauthorized interception or copying of the transmission.

It does not control what either end can do with the copy the other end intended to make.

And there's a good reason for this. The question of what can and can't be done with an authorized copy is a tricky one. However, an intermediary to transmission hjas no connection to either party's authorized use of the content and shouldn't even be making copies.

In reading your post, you mention Kaan working at the school with Theobald as they were both teachers there. Could that not be considered part of an agreement with law enforcement regarding 4th amendment? Teachers are agents of the state, if they see suspicious behavior are they not required by law to report. In looking at CA brief write ups I do not see anything specific but as an example Ohio may revoke a teaching certificate for Negligence which is defined as Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm.Could you claim had Kaan not reported the affair he was negligent in his protection of the minor? As a teacher what is the line that keeps that out of an agent of the state.Not a legal scholar just wondering...Thanks!

You may not be a legal scholar, Brandie, but that's a very good argument.

I don't know if it would work or not. Whether it would work would depend on the specifics of the statutes and (maybe) regulations that impose a duty on a teacher to report faculty-student affairs or otherwise bring evidence to the police.

Some (many?) states have laws that require computer technicians who (i)work for a computer repair store and (ii) are working on someone's computer because they've brought it in for service (iii) to report child pornography if they find it. I don't think (I'd have to check the cases to be certain) that these statutes have been held to transform the computer technicians into agents of the state for the purposes of applying the 4th Amendment because they weren't going out and seeking evidence to be used to prosecute someone for a crime. They were simply doing their job, found evidence and reported it to the police.

Now, you can argue with that distinction and we could eliminate it (we can change much of our law, harder to change constitutional amendments, but pretty easy to change how we interpret law applying to them). You'd just have to convince judges that it made sense.

There are a few details that the facts in this case do not show, and which I would like to see. Disclaimer: I know Brad Theobald and I know Brandon Kaan.

First: Was it a private email account? Or a school email account? As I understand it, Kaan was substitute teaching at the time that this event began. If it's a school email account and Kaan, acting as an agent of the school, looked at Theobald's email, I wonder how that fact (as opposed to a private email account) would play out? It seems to me that Kaan would be a government agent and not a private third party. The facts suggest that Theobald's then-wife prompted Kaan to look. But if Kaan only had the power to look because he knew Theobald's WORK password (and Kaan was an occasional substitute teacher), wouldn't this detail be problematic from a 4th Amendment perspective?

Second, another detail (although not relevant) is that Brad's wife and Kaan's wife were really good friends.

Another detail: From what I've understood, Theobald was well known as a flirt amongst the students at the high school. Even so, the ladies took to Theobald, probably because he was charming, and LOOKED LIKE BRAD PITT IN HIS TWENTIES. The girl was 17, and, as the case shows, everything was consensual. (It also troubled many to think that he would cheat on his wife, who some might say looked better than a supermodel.)

Finally, a Riverside court records search (available online) shows that Theobald is currently suing Kaan in tort for conversion. I wonder if this case (and I haven't gotten into PACER to find out) could be the civil case that resolves the (dated)federal issues which were at play in Theobald's criminal case?